National Security Legal Issues in Last Night's Debate

There were basically none. No discussion of Guantanamo, of habeas, of the NDAA, of interrogation, of military commissions, of targeted killing---and only the most cursory mention of drone strikes. This is quite a change from four years ago, when themes of restoring the rule of law, ending torture, and closing Guantanamo played big in Obama's campaign---and in the debates with Sen. John McCain---and it's a change as well from the Republican primaries, when candidates (including Romney) jockeyed with one another to double down on enhanced interrogation and keeping detainees out of U.S. courts. Why the muted role of these issues in today's campaign---and in last night's debate? I think the reason lies in this article that Ritika and I wrote for Commonweal magazine a few weeks ago:

This is not to say there are no differences between the parties on these issues. There are. But the differences have become subtle—even as the rhetoric has not. Issues that deeply divided the country as recently as four years ago have become matters of consensus, if not in the country at large, certainly in those parts of both political parties that will control the federal government under either Barack Obama or Mitt Romney.

This convergence creates anxieties on both left and right—on one side because it involves the institutionalization and legitimization of tactics like drone strikes and noncriminal detention that many people are uncomfortable with, and on the other side because it involves tempering the use of these tactics and the imposition of judicial review over wartime conduct. Both sets of anxieties have merit, but the convergence is nonetheless a great thing—it is a reflection of how much more sophisticated the American political system is in operation than in rhetoric. What’s more, whether we like the convergence or not, it is likely to continue whether President Obama gets re-elected or Mitt Romney takes his place.

. . . Despite the instincts of each party to differentiate itself from the other, there is very little daylight between them anymore on the core questions of what powers the executive branch will wield against the enemy. The country’s political rhetoric—and occasionally fierce political combat—over national-security legal matters simply has not caught up with the broad bipartisan consensus that has developed on many of those issues. This consensus does not reflect many people’s specific moral judgments regarding the merits of the practices in question; relatively few people would draw the lines where our politics have settled. And legal and moral arguments can be made against every component of the settlement the two parties have reached. That is perhaps why the rhetoric has lagged. Yet while the old couple continues the same old argument, the kids have moved out and moved on. And we should be rolling our eyes over the theatrics.